Richland, Inc.

National Labor Relations Board - Board Decisions

Dec 15, 1969

180 N.L.R.B. 91 (N.L.R.B. 1969)

RICHLAND, INC.
Richland , Inc. and National Association of Broadcast
Employees and Technicians, AFL-CIO. Cases
8-CA-5006 and 8-CA-5072
December 15, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On January 24, 1969, Trial Examiner Maurice S.
Bush issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in certain unfair labor practices and
recommending that it cease and desist therefrom,
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
the Respondent filed exceptions to the Trial
Examiner ' s Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner ' s Decision and the entire record in this
case, including the Respondent ' s exceptions and
brief, and hereby adopts the findings,' conclusions,"
and recommendations of the Trial Examiner, with
the modifications noted herein.
We agree with the Trial Examiner's conclusion,
for the reasons stated by him, that the Respondent
violated Section 8(a)(5) and (1) of the Act by
refusing to bargain with the Union over the decision
to install automated equipment and the effects of
that decision . We also agree , for the reasons stated
by the Trial Examiner that the decision was
discriminatorily motivated in violation of Section
8(a)(3) and (1).
'The Respondent 's exceptions to the Trial Examiner 's Decision are in
large part directed the credibility resolutions of the Trial Examiner. We
will not overrule the Trial Examiner ' s resolutions as to credibility unless a
clear preponderance of all relevant evidence convinces us that they are
incorrect . Such a conclusion is not warranted here. Standard Dry Wall
Products , 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3).
'We do not adopt the Trial Examiner 's reasoning that alleged changes in
working conditions in violation of Section 8(aX3) of the Act should be
considered collectively . After considering the changes individually, we do
not adopt his conclusions that the removal of venetian blinds from the
transmitter and the failure to provide nonsupervisory employees with keys
to the studio violate that section . The removal of venetian blinds was
instituted during the strike for cause and not for discriminatory reasons. It
became unnecessary for employees to have keys to the studio when the
station began 24-hour operations after the strike.
The Remedy
91
Under Section 10(c) of the Act, the Board is
charged with fashioning a remedy designed to best
effectuate the underlying statutory policy.
Ordinarily, the remedy for an 8(a)(3) violation is to
require the Employer to cease all discriminatory
practices and to make whole the aggrieved
employees. One practice found to be discriminatory
in the present case was the Respondent's installation
of automated equipment to replace engineers who
were union adherents. The usual order in such a
situation would also require that the Employer cease
utilizing the automated equipment and rehire all the
discriminatorily discharged engineers. However, we
believe some variation from our usual order is
appropriate in the circumstances of this case.3 The
Respondent's decision to automate seems to have
resulted in a considerable cost-saving to it. Despite
the discriminatory motivation for the Respondent's
installation of automated equipment, we shall not
order its use abandoned. For reasons hereinafter set
forth, we shall limit our remedy to the
discriminatory consequences of the installation,
which can be remedied by an especially tailored
reinstatement order accompanied by a provision for
backpay.
Unlike the Trial Examiner, we shall not order the
reinstatement of all three engineers. While the
wrongdoer should bear the consequences of his
unlawful conduct, the remedy must be adapted to
the situation that calls for redress.4 To require the
Employer to reinstate all three engineers would
seem to mandate featherbedding, since the
installation of automated equipment has rendered
unnecessary the employment of more than one. The
reinstatement of one engineer is thus appropriate.'
In the event that the Respondent requires the
services of additional engineers at a future date, we
shall also require that the additional names be
placed on a preferential hiring list, according to
seniority.
We shall accompany the limited reinstatement
order with a backpay requirement, designed to make
whole the employees for losses suffered as a result
of their loss of employment. Backpay shall be
provided from the date of discharge until such time
as the discriminatees shall have obtained either an
offer of reinstatement or substantially equivalent
employment. This requirement is intended to
compensate the employees for their discriminatory
discharge without placing an undue burden on the
'See, e.g ., Savoy Laundry. Inc., 148 NLRB 38, enfd. 368 F.2d 1000
(C.A. 2).
'Fibreboard Paper Products Corp, 138 NLRB 550, 555, enfd. 322 F.2d
411 (C.A.D.C.), affd. 379 U.S. 213.
'Burling , the one remaining engineer at the time of the hearing , had less
seniority than any of the discharged employees. Unlike the discriminatees,
all of whom were licensed before the commencement of the unfair labor
practice strike which preceded the discharges , he did not obtain his FCC
license until March 1968 He served as a replacement for the unfair labor
practice strikers during the strike.
180 NLRB No. 2
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent by depriving it of the use of its new
equipment.
In addition to being discriminatorily motivated,
Respondent' s unilateral installation of automated
equipment constituted an attempt to avoid
bargaining with the Union, in violation of Section
8(a)(5) of the Act. A backpay order is an
appropriate remedy for such a violation.
Technological advances can be both progressive and
destructive in their consequences. While automation
leads to increased efficiency and productivity, it may
also lead to unemployment. By its unilateral action,
the Employer deprived the Union of its right to
negotiate on behalf of the men who were to be
re[ laced by machines . In view of the Employer's
capital investment, we shall not order restoration of
the status quo ante . However, we shall enjoin the
Respondent from taking similar unilateral action
without first consulting the Union, and, in addition,
require that it bargain with the Union over the
effects of its decision to automate in this case.
In light of the fact that the backpay requirement
is intended to remedy violations of both Section
8(a)(3) and (5), we have omitted the usual clauses
conditioning the termination of liability for backpay
on the occurrence of good-faith bargaining.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Richland, Inc., Mansfield, Ohio, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in any labor
organization of its employees, by discrimination in
regard to their hire, tenure, or any other terms and
conditions of employment.
(b) Refusing to properly reinstate its employees
who engaged in the unfair labor practice strike
which began on October 6, 1967, and ended on
March 15, 1968.
(c) Applying solely or primarily to such
employees discriminatory restrictions or changes in
working conditions which would not have been
applied but for the strike.
(d) Making changes in existing rates of pay,
wages, or other terms and conditions of employment
of the employees in the appropriate bargaining unit,
described below, so as to alter the existing rates of
pay, wages, or other terms and conditions of
employment without first giving prior notice to and
bargaining with the Union over any proposed
changes, and the effects of these changes on
employees. The appropriate bargaining unit is: all
announcers and engineers, excluding office clerical
employees, guards, and supervisors, as defined in the
Act and all other employees.
(e) Threatening employees with discharge or
layoff because of their sympathies with or activities
on behalf of the Union.
(f) In any other manner interfering with,
restraining , or coercing its employees in the exercise
of the right to self-organization , to form labor
organizations , to join or assist the above-named
Union , or any other labor organization , to bargain
collectively through representatives of their own
choosing , to engage in concerted activities for the
purpose of collective bargaining or other mutual aid
or protection , or to refrain from any and all such
activities , except to the extent that such right may
be affected by the proviso to Section 8(a)(3) of the
Act.
2. Take the following affirmative action which is,
necessary to effectuate the purposes of the Act:
(a) Upon request , bargain collectively with the
National Association of Broadcast Employees and
Technicians , AFL-CIO, as the exclusive
representative of the employees in the aforestated
appropriate unit with respect to rates of pay, wages,
hours of employment , and other conditions of
employment , including retroactive bargaining with
respect to the effect Respondent ' s introduction of,
remote control and audio equipment at its facilities
shall have , if any , on the work of the bargaining
unit , except that the bargaining with respect to the
latter shall not relieve the Respondent of the order
herein requiring it to reinstate the senior
engineer-employee , as set forth more fully in the
"The Remedy" section of our Decision ; and, if any
understanding is reached , embody such
understanding in a signed agreement.
(b) Restore to all reinstated unfair labor practice
strikers the same working conditions they had prior
to going on strike, including among others daytime
working hours and weekend days off , except as such
prestrike working conditions are altered by
agreement between the Respondent and the Union
at collective - bargaining sessions , and except as
indicated in our Decision.
(c) Offer one of the three discharged
employee-engineers (the senior first; if he declines,
then each of the others , in descending order of
seniority ) immediate and full reinstatement to his
former or substantially equivalent position , without
prejudice to his seniority or other rights and
privileges . Place any remaining discharged
engineer-employees who have not been offered
reinstatement on a preferential hiring list, according
to seniority.
(d) Make Lester W. Campbell , Joseph R. Nixon,
and Clayton L. Hallmark , whole for any loss of
earnings , as set forth in the "The Remedy" section
of this Decision.
(e) Notify the above-named employees, if
presently serving in the Armed Forces of the United
States , of their reinstatement rights in accordance
with the Selective Service Act and the Universal
Military Training and Service Act, as amended,
after discharge from the Armed Forces.
RICHLAND, INC.
(f) Preserve and make available to the Board or
its agents all payroll and other records, as set forth
in the "The Remedy" section of the Trial
Examiner's Decision.
(g) Post at its broadcasting station and
transmitter site at Mansfield, Ohio, copies of the
attached notice marked "Appendix."6 Copies of said
notice on forms provided by the Regional Director
for Region 8, shall, after being duly signed by the
Respondent's representative, be posted by the
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced,
or covered by any other material.
(h) Notify the Regional Director for Region 8, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
*in the event that this Order is enforced by a judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted pursuant to a
Judgment of the United States Court of Appeals enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE TO EMPLOYEES
Posted by order of the National Labor Relations Board
an agency of the United States Government
WE WILL NOT discourage membership in the
National Association of Broadcast Employees and
Technicians, AFL-CIO, or any other labor organization
of our employees, by discrimination in regard to their
hire, tenure, or any other terms and conditions of
employment, except as authorized by the proviso to
Section 8(a)(3) of the Act.
WE WILL NOT refuse to properly reinstate out
employees who engaged in the unfair labor practice
strike which began on October 6, 1967, and ended on
March 15, 1968
WE WILL NOT apply solely or primarily to such
employees discriminatory restrictions or changes in
working conditions which would not have been applied
but for the strike.
WE WILL NOT make changes in existing rates of pay,
wages, or other terms and conditions of employment of
the employees in the appropriate bargaining unit,
described below, so as to alter the existing rates of pay,
wages, or other terms and conditions of employment,
without first giving prior notice to and bargaining with
the Union over any proposed changes, and the effects
of such changes on employees The appropriate
bargaining unit is
All announcers and engineers, excluding office
clerical employees, guards, and supervisors, as
defined in the Act, and all other employees.
WE WILL NOT threaten employees with discharge,
layoff, or termination because of their sympathies with
or activities on behalf of the Union.
WE' WILL NOT in any other manner interfere with,
93
restrain, or coerce our employees in the exercise of the
right to self-organization to form labor organizations,
to join or assist the above-named Union, or any other
labor organization, to bargain collectively through
representatives of their own choosing, to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities, except to the
extent that such right may be affected by the proviso to
Section 8(a)(3) of the Act
WE WILL, upon request, bargain collectively with the
National Association of Broadcast Employees and
Technicians, AFL-CIO, as the exclusive representative
of the employees in the aforestated appropriate unit
with respect to rates of pay, wages, hours of
employment, and other conditions of employment,
including retroactive bargaining with respect to the
effect that the introduction of remote control and audio
equipment at our facilities shall have, if any, on the
work of the bargaining unit, except that the bargaining
with respect to the latter shall not relieve us of the
obligation to reinstate one of the discharged
engineer-employees, and if any understanding is
reached, embody such understanding in a signed
agreement.
WE WILL restore to the reinstated unfair labor
practice strikers the same working conditions they had
prior to going on strike, including among others,
daytime working hours and weekend days off, except as
such prestrike working conditions are altered by
agreement with the Union at collective-bargaining
sessions, and with the limited exceptions indicated in
the Dec!sion of the National Labor Relations Board
WE WILL offer to one of the discharged
employee-engineers, the senior first, if he declines, then
each of the others, in descending order of seniority,
immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to
his seniority or other rights and privileges
WE WILL place the remaining discharged
employee-engineers, who have not been offered
reinstatement, on a preferential hiring list, according to
seniority
WE WILL make Lester W. Campbell, Joseph R.
Nixon, and Clayton L. Hallmark, whole for any loss of
earnings, as set forth in the Decision of the National
Labor Relations Board
WE WILL notify the above employees, if presently
serving in the Armed Forces of the United States, of
their reinstatement rights, in accordance with the
Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge
from the Armed Forces.
Dated By
RICHLAND, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's Office,
1695 Federal Office Building, 1240 East 9th Street,
Cleveland, Ohio 44199, Telephone 216-522-3715.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
MAURICE S. BUSH, Trial Examiner: In a prior unfair
labor practice proceeding, the Board by an Order' dated
May 31, 1968, found Richland, Inc., the Respondent
herein, in violation of Section 8(a)(1), (3), and (5) of the
National Labor Relations Act. The Order directed the
Respondent to bargain collectively in good faith with the
National Association of Broadcast Employees and
Technicians, AFL-CIO, the Union herein, upon its request
as the representative of the bargaining unit therein and
herein involved. In the findings accompanying its Order,
the Board found that the strike of Respondent's
employees which commenced on October 6, 1967, was an
unfair labor practice strike. The Order accordingly
directed the Respondent to reinstate all striking employees
who applied for reinstatement. The Order also directed
the Respondent to cease and desist from the numerous
unfair labor practices, including Respondent's failure to
bargain in good faith with the Union. The Order further
required the Respondent "to cease and desist from in any
other manner interfering with, restraining, or coercing
employees in the exercise of their rights under Section 7
of the Act."
The present consolidated proceeding involves charges of
further violation of Section 8(a)(1), (3), and (5) of the Act
by Respondent. In addition the complaint in Case
8-CA-5006 herein also alleges Section 8(a)(4) reprisals
against certain employees for testifying against
Respondent in the aforementioned prior proceeding.
The most serious charge against the Respondent in the
instant consolidated proceeding is the allegation of 8(a)(5)
violation by reason of Respondent's failure to bargain
with the Union with respect to the installation of certain
labor saving equipment which caused the discharge of a
number of employees and otherwise adversely affected
former striking employees who remain in Respondent's
employment. Respondent admits that it installed the
equipment in question and thereby caused the termination
of some bargaining unit work and admits that such
installation took place without any bargaining thereon
with the Union, but alleges by way of an affirmative
defense that the installation was "not a bargaining issue
by reason of the fact the Complainant Union eliminated
the installation of remote control and automatic
equipment as a bargaining issue and waived said rights to
bargain in regard to this issue."
The remaining portions of the two complaints, charging
violations of Section 8(a)(1), (3), and (4), allege numerous
petty reprisals and harassments against reinstated former
striking employees because of their union interest and
activities.
Respondent's answers to the complaints deny any
unfair labor practices.
A more detailed statement of the issues is set forth
below.
The complaint in Case 8-CA-5006 was issued on May
28, 1968, pursuant to a charge filed by the Union on April
24, 1968, and served on Respondent on April 26, 1968,
and an amended charge filed on May 24, 1968 and served
on Respondent on the same day. The complaint in Case
8-CA-5072 was filed on August 6, 1968, pursuant to a
charge filed on July 3, 1968, and served upon Respondent
on July 8, 1968. The two complaints were consolidated for
r--
'Case 8-CA-4793 (G.C. Exh. 2) in which the Board adopted in toto the
decision of Trial Examiner Frederick U. Reel to which no exceptions were
filed by Respondent.
trial by an order dated August 6, 1968.
The consolidated proceeding was tried before me on
September 24, 25, and 26, 1968, at Mansfield, Ohio.
Briefs filed by counsel for General Counsel and for
Respondent were received on November 25, 1968. These
have been carefully reviewed and considered.
Upon the entire record and from his observation of the
witnesses , the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent , an Ohio corporation , has its principal
office and place of business at Mansfield , Ohio, from
which it operates a radio station which annually derives
revenue in excess of $100,000 from product advertising,
some part of which is derived from advertising nationally
sold products . The Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
II. THE LABOR ORGANIZATION
The aforementioned Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues in the case as established by the pleadings as
amended are as follows:
1. Whether Respondent through its President and
General Manager John M. O'Hara violated 8(a)(1) of the
Act by threatening employees with economic reprisals,
including discharge , layoff, or termination of employment
because of their interest in and activities on behalf of the
Union and /or because of other protected concerted
activities? (Par. 6 of Complaint in Case 8 -CA-5072.)
2. Whether Respondent through its said President and
General Manager O ' Hara violated Section 8(a)(1) and (3)
of the Act by failing to properly reinstate six former
unfair labor practice strikers in accordance with the Board
Order in aforementioned Case 8-CA-4793 by
discriminatorily imposing on such employees new
conditions of employment as follows:'
(a) Altering the work schedule of said employees.
(b) Scheduling their vacations at disadvantageous
and unreasonable times.
(c) Altering and changing those days on which they
are not required to report to work.
(d) Removing the venetian blinds from the windows
at Respondent ' s transmitter facility where some of said
employees are or were employed as engineers.
(e) Removing from their possession , keys used to
gain access to Respondent ' s broadcasting station.
(f) Requiring and insisting that they remove and
transfer their personal belongings from Respondent's
radio broadcasting station and transmitter.
(g) Refusing them access to the broadcasting station
during their nonwork hours.
(h) Taping and otherwise recording for subsequent
review , the radio programs or broadcasts of former
striker Roger Marvin Cade.
'This issue derives from Par . 10 of the Complaint in Case 8 -CA-5006
RICHLAND, INC.
(i) Preselecting those music records and music
transcriptions to be used by former strikers employed
as radio announcers.
(j) Refusing to permit former striking engineers to
perform their own maintenance work.
(k) Discriminatorily applying some or all of the
above changed conditions solely or primarily to the
aforementioned unfair labor practice strikers upon
return to their jobs after the strike had ended.
3. Whether Respondent violated Section 8(a)(1) and (4)
of the Act by imposing the aforementioned new working
conditions on former strikers upon their return to their
jobs because they testified against Respondent in
aforementioned Case 8-CA-4793? (Par. 12 of the
complaint in Case 5006.)
4. Whether the Union in its collective bargaining
negotiations with Respondent waived the right to bargain
with Respondent with respect to the installation of labor
saving devices at its facilities (Par. 12 of Complaint in,
Case 5072 and Par. 3 of Respondent's Answer thereto as
amended at the trial.)
5. Whether Respondent's admitted unilateral
installation of labor-saving equipment without notice to
the Union with resultant termination of 3
engineer-employees and the shifting of some of their
former duties to other employees, is in violation of
Section 8(a)(1), (3), and (5), or was motivated by
economic necessity? (Pars . 12 and 13 of Complaint in
Case 5072 and Par. 3 of Respondent's Answer thereto as
amended at the trial.)
B. General Background Findings
Richland, Inc., better known as radio station WMAN,
operates two facilities. One of these is its broadcasting
studio in downtown Mansfield which is also its principal
office and place of business. The other is its transmitter
station located some two miles away. The Company's
announcers are stationed at the studio and its engineers,
more correctly described as F.C.C. licensed first class
telephone operators, worked at the transmitter station at
the times here material. The undisputed unit here involved
consists of all of Respondent's announcers and engineers,
excluding office clerical employees, guards, supervisors (as
defined by the Act) and all other employees. On May 12,
1967, the Union, after an election, was certified by the
Board as the exclusive collective- bargaining representative
of the employees in the unit.
Respondent' s announcers and engineers went on strike
on October 6, 1967, after numerous unsuccessful
bargaining sessions between the Union and Respondent.
The strike, as heretofore shown, was found by the Board
in the prior proceeding to be an unfair labor practice
strike and Respondent was ordered to reinstate the
striking employees, upon application, to their former or
substantially equivalent positions. The strike came to an
end on March 15, 1968, when the involved employees
made such applications through the Union shortly after
my initial decision was issued in the prior case . They were
reemployed by Respondent on March 22, 1968.
Thereafter, the complaints allege, Respondent engaged in
a course of conduct and acts in violation of the Act which
are the subject of this consolidated proceeding.
John M. O'Hara has been president of Respondent for
the past 13 years and its general manager for 27 years.
Although he owns no stock in the Company, the record
supports the inference that O'Hara operates station
WMAN pretty much as he personally sees fit and with
95
minimum direction from the estate which owns all of
Respondent's stock.
The Board's decision in the prior case against
Respondent shows that O'Hara was "strongly opposed to
the advent of the Union" and was personally responsible
for most of the numerous unfair labor practices found
therein which includes assertions by O'Hara that he would
never sign a collective bargaining contract. At the time of
the trial herein, no agreement had been reached on a
collective- bargaining agreement.
Similarly the record in the present proceeding shows
that O' Hara is the central figure in the unlawful conduct
alleged in the complaints herein.
C. Issue as to whether Respondent engaged in alleged
8(a)(1) violations by threatening employees with
economic reprisals, including discharge, layoff, or
termination of employment because of their union
lactivities (Par 6 of Complaint in Case 8-CA-5072)
Six out of the 8 former striking employees' were
recalled by Respondent pursuant to the Board order in the
prior case against Respondent. Three of these were radio
announcers and 3 were engineers . The 3 recalled
announcers were Martin Offmiss, Eugene N. White, and
Roger Marvin Cade who had worked for Respondent
prior to the strike for approximately 7, 3, and 2 years,
respectively. The 3 recalled engineers were Lester W.
Campbell, Joseph R. Nixon, and Clayton Hallmark, each
with approximately 17, 7 and 1 year prior employment
with station WMAN, respectively.
The 6 employees were recalled to work, as heretofore
noted, on March 22, 1968 after being on strike for about
5 months. Commencing with that date, President O'Hara
spoke individually to a number of the returning strikers on
subjects related to their union activities.
Engineer Nixon, Respondent's former chief engineer 4
was the first of the recalled strikers O'Hara spoke to. On
the day of his return to his job on March 22, O'Hara
looked him up at the transmitter station and asked how
he "liked things." Nixon complained about his new
working hours. O'Hara's reply to this, according to
Nixon's credited testimony, was that he was "not going to
do you fellows any favors. You didn't do me any when
you went on strike."
On March 30, O'Hara again spoke to Nixon at the
transmitter station . On this occasion O'Hara told Nixon
of his intention "to automate" WMAN in about 3 months
in the interests of cutting expenses down, but stated that if
Nixon "was a good boy," he could stay on with
'Trial Examiner Reel's decision in the prior case (Case 8-CA-4793) at
pp. 6 and 8 (fn. 3) shows that the bargaining unit at the tine the strike
commenced on October 6, 1967, consisted of 8 employees and that all of
these went on strike . It appears, however , from the. present record that
there was an additional employee in the unit, Jack Burling , who was hired
about a month before the strike started as an unlicensed engineer and who
did not go out on strike but remained on the job and worked throughout
the strike as a replacement engineer and is now Respondent's only
engineer. Although the pleadings herein show that the Union on March 15,
1968, made an unconditional offer to Respondent in behalf of all the
striking employees for their return to work , it appears that 2 of the
strikers, Keisling and Carr, chose not to be reinstated . Keisling worked for
Respondent as an announcer while attending school at the same time. It is
probable that he chose to give up his job in order to attend school full
time.
?he record shows that Nixon ceased to have supervisory status, on
August 15, 1968, which was prior to the start of the strike, by reason of an
agreement reached at a bargaining session that day that he would be part
of the bargaining unit and that he would no longer have supervisory duties.
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent indefinitely As Nixon's competency as an
engineer is attested by his long employment with
Respondent both as a nonsupervisory engineer and as a
former chief engineer, the Examiner infers and finds from
O'Hara's remark to Nixon about his being a "good boy"
that he was making a promise of benefit on the condition
that Nixon cease his engagement in protected concerted
activity. In the same conversation, O'Hara expressed
strong resentment against a number of former strikers. He
called one of them a drunk, described another as one who
had formerly lived off the earnings of his wife,
characterized a third as a trouble-maker, and charged still
another former striker with being superannuated.
On June 21, 1968, Nixon learned from a posted notice
that he and certain other named employees in the
transmitter station were to be laid off on June 29, 1968,
because the Company on that date was placing into
operation new labor-saving remote control equipment.
Later that same day O'Hara dropped in at the transmitter
station and after a few minutes of inspection, asked Nixon
if he had seen the layoff notice on the bulletin board and
told him that his main purpose in coming to the station
was to offer him a good recommendation for another job.
To Nixon's pained expressions of surprise at the layoff,
O'Hara replied, "I am not going to do you fellows any
favors." As justification for the layoffs, O'Hara made
reference to the then pending law suit under the federal
wage and hour law the former strikers had brought
against the Company while they were still on strike for
backpay due to alleged unpaid overtime, and to
complaints the strikers had lodged with the Federal
Communications Commission about the station's alleged
excessive use of commercials which had caused an
investigation of the station by that agency. During the
course of the conversation, O'Hara in addition to offering
Nixon a good recommendation for another job also
offered him a job with WMAN as a salesman of radio
advertising time. Nixon who has never worked as a
salesman for Respondent, asked if he took the job
whether he "would have to get out of the Union." O'Hara
indicated that he would. Nixon declined the offer. O'Hara
did not discuss with Nixon the earnings he would or might
earn as an advertisement salesman if he chose to take that
job, but told him that if he had not been involved in "This
trouble" which the record by inference shows to refer
to Nixon's participation in the strike - he could have
been earning $30 more a week than he was then receiving
On March 31, 1968, O'Hara had a long talk at the
transmitter station with Campbell, WMAN's oldest
engineer in age and in years of service with Respondent.
During the conversation which in large part related to
O'Hara's praise of the employees he had hired during the
strike to replace the strikers, O'Hara told Campbell that
prior to the strike he had "never bothered us [employees]
much," but that he was now "going to get tough with us
boys." The record shows by inference that by the term
"boys," O'Hara had reference to the recalled strikers.
On April 7, 1968, O'Hara spoke to engineer Hallmark
at the transmitter station after a brief inspection of the
site. He told Hallmark that he was going to "automate"
the station and advised him to seek employment elsewhere
by placing an ad in Broadcast magazine. During the
conversation, O'Hara expressed bitterness towards the
former striking employees, including Hallmark, who had
testified against him in the prior Board proceeding,
accusing them of having lied in their testimony. He also
expressed resentment over the wage and hour law suit
brought by the former strikers against the Company for
alleged unpaid overtime
On June 22, 1968, O'Hara again had a conversation
with Hallmark, following the posting of the automation
notice and resulting layoffs. Hallmark asked O'Hara why
he had automated. The credited testimony of Hallmark
shows that O'Hara gave several reasons for automating
the transmitter station. Among these was the fact that the
former strikers, consisting in part of the engineers, had
filed unfair labor charges through the Union with the
Board against WMAN Another was that the strike had
caused the Company the loss of some 20 accounts. A
further reason was that the former strikers were suing
Respondent under the wage and hour laws for alleged
unpaid overtime aggregating $6,000 to $7,000 Still
another reason given by O'Hara for the automation was
that the former strikers had filed embarassing charges of
excessive use of commercials against WMAN with the
Federal Communications Commission.
Although the posted layoff notice referred to the
separation of the affected engineer employees from
Respondent's employment as "layoffs," O'Hara the next
day made it plain to Hallmark at the transmitter site that
his separation was actually a permanent discharge when in
extending his hand to Hallmark for a handshake he told
him "you won't be seeing me again."
On March 31, 1968, O'Hara told Offmiss, a recalled
announcer, that he was going to automate the
broadcasting studios and urged him to return to the job he
had held with the local Health Department during the
strike to avoid the possibility of losing his job at the
studio when it would become automated. The above
finding is established by the credited testimony of Offmiss.
At that point in Offmiss' testimony, the Trial Examiner
asked Offmiss, "How would automation of the station
affect your job as an announcer?" Offmiss replied, "I
couldn't conceive of it in no way.", Considered in the light
of O'Hara's above-related motives in automating the
transmitter station with the loss to the bargaining unit of
a number of former striking engineers by reason thereof, I
find that O'Hara by his above-described conversation with
Offmiss was seeking to intimidate Offmiss into quitting
his job with WMAN by threats of automating the
broadcasting studio in order to rid the station of Offmiss'
union activities.
O'Hara also had a talk sometime in April 1968 with
Announcer White, one of the recalled strikers while he
was showing him the then newly installed studio facilities
in a separate room for the production of commercial
announcements for the air. White expressed the hope that
he might have the opportunity to use the new equipment.
O'Hara replied to this that he would if he "behaved"
himself. White inferred that this perhaps related to his
union activities. I infer from the entire record that
O'Hara's remark to White about his "behaving" himself
was an implied promise that he could remain in the
employment of WMAN if he refrained from further union
activities.
The record shows that Respondent ordered the labor
saving remote control or so-called automation equipment
for the transmitter, at or about the time the strike ended
on March 15, 1968, or about a week before Respondent
recalled the strikers to its employment
'It should be noted that the preceding findings related to the automation
of the transmitter station which is a separate facility located some two
miles away from the broadcasting studio
RICHLAND , INC. 97
Discussion and Conclusions
The above related remarks by Mr. O'Hara are based
upon the credited testimony of the indicated employees.
This testimony is remarkably consistent and corroborative
and gave at the hearing and gives in the transcript every
evidence of being both sincere and truthful. With respect
to the remarks attributed to O'Hara by Nixon,
Respondent's brief states only that, "Mr. O'Hara does not
deny having conversations with Mr. Nixon but denies the
general import that Mr. Nixon gave of these
conversations." Similar comments are made by
Respondent in its brief with respect to the nature of Mr.
O'Hara's denials of the remarks attributed to him by
Engineers Hallmark and Campbell and Announcers White
and Offmiss as related above. I do not credit O'Hara's
denials.
Although some of the statements attributed to O'Hara,
such as his declaration that one of the former strikers was
a drunk, are not in themselves violative of the Act, when
considered collectively they reveal a bitter hostility
towards and an unwillingness to have in Respondent's
employment the above-named employees because of their
past and suspected future union activitites. This conclusion
is corroborated by other acts by Respondent shown below
which indicate an attitude incompatible with the
requirements of the Act.
Respondent contends that the statements of Mr.
O'Hara to his employees that he was going to automate
the transmitter station, if credited, cannot be regarded as
threats but must be regarded as "mere statements of fact
since Mr. O'Hara had on March 15, 1968 [i.e. prior to the
recall of the former striking engineers ] reached an
agreement to purchase remote control equipment." In my
opinion, the mere fact that the threats of automation were
in fact carried out does not relieve them of their unlawful
nature because the records shows that the installation of
the remote control equipment was motivated by elements
of reprisal, despite claims by Respondent that the
installations were made solely for economic reasons.' This
is evident from the bitter personal remarks made by
O'Hara to Nixon and Hallmark about a number of the
former strikers and by such expressions, among others, by
O'Hara that he was "not going to do you fellows [former
strikers] any favors. You didn't do me any when you went
on strike."
I find and conclude from the findings made above that
Respondent is in violation of Section 8(a)(1) of the Act by
reason of threatening its employees with economic
reprisals, including discharge, layoff, or termination of
employment because of their union activities.
D. Issue as to whether Respondent is in violation of
Section 8(a)(l) and (3) of the Act by failing to
properly reinstate 6 former strikers in accordance
with the Board's prior unfair labor practice order
(Par. 10 of Complaint in Case 8-CA-5006)
The Board in its Order of May 31, 1968, in
Respondent's prior unfair labor case ordered the
Company, as heretofore noted, to reinstate its unfair labor
practice strikers, upon application, to their former or
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, "discharging
to the extent necessary, all employees hired since that
'Respondent 's claim of economic necessity for the automation will be
discussed below in connection with another issue.
d ate."
The complaint in present Case 8-CA-5006 under
paragraph 10 alleges in effect that although Respondent
did recall former strikers, Nixon, Campbell, Hallmark,
Offmiss, White, and Cade, it altered their working
conditions in 10 different respects and therefore did not
reinstate them "to their former or substantially equivalent
positions." The complaint further alleges that some or all
of these new working conditions were applied "solely or
primarily to those of its employees" who had engaged in
the aforementioned strike. These changes are admitted by
the Company but the Respondent asserts economic or
business justifications for each change. I am convinced
from his examination of the record that Respondent's
motivation in making these numerous admitted changes
cannot be judged on an individual basis but must be
judged collectively.
Two of these changes in working conditions relate to
changes in the scheduled hours of work and days off for
the returned strikers as against the hours they worked and
days off they had prior to the strike. Prior to the strike
Engineer Nixon worked a straight 5 30 a.m. to 2:30 p.m.
shift with Saturdays and Sundays off; after the strike he
was required to work from 4 p.m. to midnight 4 days a
week and one day from midnight to 8 a.m., with 2
weekdays off instead of Saturday and Sunday. Engineer
Campbell before the strike was on a regular 5 day
schedule of 4 p.m to midnight, but after the strike his
workweek was split into 2 shifts of 2 nights a week from
midnight to 8 a.m. and 3 days at his old schedule of 4
p.m. to midnight. Engineer Hallmark before the strike
worked a straight 8 a.m. to 4 p.m. shift; after the strike
he was put on three different shifts during his 5 day
workweek, one day being from midnight to 8:00 a.m., two
days from 8 a.m. to 4 p.m., and 2 days from 4 p.m. to
midnight. Announcer Cade before the strike worked 6
days a week from 6 a.m. to 12 noon with Sunday off;
after the strike his shift was midnight to 6 a.m., with
Tuesday off instead of Sunday. Announcer White before
the strike worked 3:30 p.m. to 8:30 p.m. Tuesday thru
Saturday and 3:30 p.m. to 12 midnight on Sunday with
Monday off; White couldn't recall the shifts he was
required to work immediately after the strike ended, but
at the time of the trial herein he was working Monday
through Wednesday 6 30 p.m. to 12:10 a m., Thursday
from midnight to 6 a.m. Friday, and on Saturday from
noon to 6:10 p.m., with Friday as his day off. Announcer
Offmiss' working schedule before the strike was from 11
a.m. or 12 noon to 6 p.m.; immediately after the strike his
hours on some days were 6 p.m. to midnight and on other
days, midnight to 6 a.m.
The above admitted facts reflect the radical changes in
hours of employment the recalled strikers were required to
work as compared with their shifts prior to the
night-work The change in hours also entailed the loss of
week-ends as days off for a number of the employees;
after the strike they were required to work full time on
Saturdays and Sundays. On the other hand, replacement
announcers who were taken on during the strike and
retained thereafter were required to work only 2 or 3
hours on weekend days such as Saturday and Sunday.
President O'Hara's response to Nixon's complaints about
his new working hours was, as heretofore noted, that he
was "not going to do you fellows any favors. You didn't
do me any when you went on strike."
Respondent operated WMAN for many years prior to
the end of the strike on an 18-hour-per-day basis from 6
a.m. to midnight. On March 22, 1968, the day the former
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strikers returned to their jobs , President O'Hara expanded
the operations of the station from 1$ to 24 hours a day.
This enabled WMAN to keep the replacement employees
the station had hired during the strike even after recalling
the former unfair labor practice strikers pursuant to
Board Order in the prior case. This extension of the
operating time of the station, however , is not challenged
by the pleadings as being discriminatorily motivated. The
record shows that the change was motivated by the desire
to gain additional revenue and also, by inference from the
entire record by Respondent ' s desire to dilute the strength
of the Union by keeping on its non -union replacement
employees.
Respondent ' s defense to the change of working hours
for the recalled strikers is, according to the testimony of
its Program Director Robert James , that "with the 24
hour operation we had to determine which of our
personnel would best fit it on certain shifts and it was our
decision that certain men would go to certain times."
James offered the following explanation for giving the
recalled strikers night hours in lieu of the day time hours
they had before the strike, "Number 1 to have some
benefit of their experience at the station to operate at
those hours without supervision . They were much more
familiar with the equipment than the men who replaced
them during the strike and we felt that they could operate
without supervision during the nights and weekends when
there was no supervisory personnel on hand ." The record
shows that the station has never used seniority as a basis
for assigning shifts.
Although the stated reason for changing Announcer
Cade's shift from prime day time to the midnight shift
was his long experience and ability to operate without
supervision , Respondent nevertheless placed him under
indirect supervision by directing that this announcement
be taped as a check on whether he was following
instructions. This had never been done before. (Cade has
at all times been the Union 's steward.)
Similarly, although the stated reason for placing the
former striking engineers on the night shift was their
ability to operate without supervision , the record shows
that President O'Hara actually regarded his placement
engineers as superior to his regular engineers who had
been on strike . (This finding is based upon the credited
and undisputed testimony of Engineer Campbell.)
Another change in working conditions of the former
strikers after the strike was in the "scheduling [of] their
vacations at disadvantageous and unreasonable times."
Before the strike , the involved strikers were generally
given the right to select their own vacation period during
the three summer months of June , July or August on the
basis of seniority. After the strike, these employees were
generally required to take their vacations within the
bounds of about a month from approximately May 15 to
June 15 , on a seniority basis . In at least one instance, a
former striker was required to take his vacation while his
children were still in the school year . On the other hand
the nonstrikers were allowed to take their vacations in
July and August. (G.C. Exh. 6.)
A fourth change alleged by the complaint is that after
the strike the Respondent removed all venetian blinds
from the windows of the transmitter facility. The building
has 8 windows . Prior to the strike , employees kept the
blinds down after dark. On April 10, 1968, the Company
posted a bulletin requiring all blinds and window shades to
be kept "open or up due to police surveillance each
night." On April 29 , Respondent physically removed all
such blinds except one which the employees - were
instructed to keep up at all times. The record shows that
one of the recalled engineers was made uneasy by the
removal of the blinds as the transmitter station is located
in a remote area. Police surveillance of the transmitter
facility began during the strike and continued after the
strike; prior to the strike there was no police surveillance.
The removal of the blinds more generally affected the
former strikers as they were given night shifts.
Another change encountered by the former strikers
upon their recall is that they were denied admission to the
studio and transmitter facilities by key. Prior to the strike
each employee was furnished with a door key to the
facilities. During the strike the locks on the doors to the
studio and transmitter station were changed . After the
strike, none of the non-supervisory employees were given
keys to the changed locks, but were obliged to ring a bell
to gain access which they found annoying as the
employees had to wait for someone to let them in.
Respondent's defense to this change is that with station
now open 24 hours a day there was always someone at the
two facilities to open the door for employees reporting to
work and accordingly no need for keys to the facilities on
the part of nonsupervisory personnel. This change affected
former strikers and nonstrikers alike.
A sixth change in working conditions after the strike is
that employees were required to remove their personal
belongings from Respondent's facilities. For many years
prior to the strike employees were permitted to keep such
personal effects at the studio and transmitter as their own
tools, phonograph records, portraits, typewriters, dishes
and music reference work. The record supports the
inference that Respondent before the strike had never
objected to the practice of some of its engineers making
repairs on radios for friends in their spare time while on
duty. On the day the strikers were recalled, Respondent
posted a notice on its bulletin boards addressed to all
employees directing that, "All personal belongings (dishes,
silverware, books, equipment, and other personal items)
will be removed at once." This order was not in effect
during the strike. After the strike each employee was
given a small drawer in which to keep such small things as
books and magazines . Mr. O'Hara in his testimony
sought to justify the new rule against the keeping of
personal belongings on the premises by employees on the
ground that the station "many years ago" lost a good
many Company tools and also on the ground that he
wanted to stop the engineers from doing private repair
work for friends at the transmitter station.
Still another new working condition put into force after
the strike was a rule refusing employees access to
broadcasting studio during their nonworking hours. Prior
to the strike employees had the right to visit the studio
during their nonworking hours as they pleased. After the
strike Mr. O'Hara issued an order prohibiting this.,
Although the complaint does not allege another related
poststrike rule prohibiting employees during their working
hours from socializing at the studio with other persons,
the record shows that such a rule was inaugurated upon
the recall of the former strikers and that the matter was
litigated by consent. There was no such rule prior to the
strike . Such socializing as the employees had done prior
to the strike was primarily with other employees who were
off duty. President O'Hara testified that he had put these
bans into effect in order to protect the station against the
possibility of unfounded claims for overtime pay, as
Respondent had been sued by the striking employees for
overtime under the Federal wage and hour law.
RICHLAND, INC.
The next change in working conditions alleged by the
complaint relates to Respondent's Announcer Roger
Marvin Cade who has at all times been the Union's
steward Prior to the strike, his radio programs were never
taped as they were being broadcast After the strike, the
complaint alleges that Cade's radio programs or
broadcasts were taped for subsequent review from the
tape As heretofore noted, Cade's work schedule after the
strike was changed from day time hours to the midnight
shift Respondent denies any discriminatory motive in
ordering Cade's broadcasts taped or air checked as it is
called in the trade President O'Hara testified that he
ordered Cade's programs air checked "Because we were
starting a new program at a different time segment [the
midnight shift] and we wanted to find out exactly how it
sounded because there is no supervisory personnel there to
check on it." On the other hand, Respondent's Program
Director Robert James testified as heretofore shown, that
the employees assigned to work the night shifts were
selected from the station's most experienced employees,
such as Cade and Offmiss, in order to give the
Respondent the benefit of their experience at the station
"to operate at those hours [the midnight shift] without
supervision." (Emphasis supplied ) Prior to the strike, the
station followed the practice of never taping any of its
announcers except on rare occasions when a controversial
program was being broadcast and a record thereof was
necessary for protective purposes After the strike, Cade's
midnight programs, including the music, news, and
commercials he broadcast, were taped for the entire 6
hours he was on the air. Similar procedure was followed
on Offmiss' broadcasts on the days he worked the
midnight shift. The radio programs of two other
nonstriking announcers were also taped, but only for 2 or
3 hours as against the 6-hour taping of Cade's and
Offmiss' entire radio program The Union protested the
taping of announcers' air programs to the Respondent on
April 15, 1968 Respondent discontinued the practice on
April 17, 1968
The next poststrike working condition change alleged
by the complaint relates to the initiation of an order
requiring Cade, Offmiss and White in their positions as
announcers to use preselected music records and
transcriptions on their radio broadcast programs Prior to
the strike these three former strikers made their own
selections of the music to be played on their broadcasts,
but after the strike they were required to play in exact
sequence the records preselected for them by Daniel
Sterling in his capacity as the station's newly created
music director, following his previous employment as a
replacement engineer and shortly thereafter as a
replacement announcer during the course of the
6-month-old strike. Sterling checked the tapes of the 3
former strikers to make certain that they were following
his sequence of preselection records. The record shows
that initially the music was preselected only for employees
returning from the strike, but that when complaints
reached Mr. O'Hara about this in a few days he directed
that all announcers be required to play preselected
records Program Director Robert James revealed at the
hearing that initially Cade, Offmiss, and White had been
singled out for the order directing them to play
preselected music because they had been on strike and
because in their new poststrike night shifts they were
performing without supervision. But other testimony by
Mr. James shows that those employees were put on the
night- shift precisely because they were qualified to work
without supervision because of their long experience of
99
announcers at WMAN Shortly after complaint from the
Union at a bargaining session that preselection was still
being applied discriminately only to former strikers and
not to replacement employees, Respondent abandoned
preselection altogether
Discussion and Conclusions
A review of the above findings reveal that some of the
changes in working condition imposed upon the recalled
strikers are petty in nature, such as the removal of the
venetian blinds, the deprival of key privileges to employees
for entrance to the facilities, and the order requiring
employees to remove personal belongings from the
premises, but that others are quite serious In the latter
category, I place the shifting of former strikers from
daytime duty to midnight shifts, the divestiture of
Saturdays and Sundays from the recalled employees as
their days off, and the requirement that the employees
take disadvantageous vacation schedules compared to
what they had prior to the strike.
If the changes are considered individually, the business
reasons offered for some of these have a certain
plausibility But when the changes are viewed collectively
and in the light of the entire record herein and in the prior
unfair labor practice case, they require the conclusion that
they were imposed by Respondent through President
O'Hara primarily as reprisals, punishments and
harassments against the former strikers, expressive of
O'Hara's displeasure with their concerted activity for the
purpose of collective bargaining and other mutual aid or
protection This conclusion is attested by the findings
shown in the preceding section of this Decision. There it is
shown that O'Hara rejected the complaint of striker
Nixon, his former Chief Engineer, about his new midnight
poststrike assignment with the comment that he was not
doing the strikers any favors as they had not done him
any by going on strike The preceding section also shows
that O'Hara in the midst of a later conversation with
Nixon about his plans to install labor-saving devices at the
transmitter station, engaged in a personal vilification of a
number of the recalled former strikers, some of whom
later lost their jobs when the automation was effected In
still another conversation set forth in the preceding
section, O'Hara told recalled Engineer Campbell, the
station's most senior employee with more than 20 years of
service, that he had been lenient with his employees prior
to the strike but that he was now "going to get tough with
us boys." These incidents and others related in the
preceding section make it clear that the above-described
poststrike changes in the working conditions were
motivated primarily by the desire for reprisals against the
former strikers.
The changes in themselves also abound with internal
evidence that they were discriminatorily motivated. They
show that simultaneously with the recall of the strikers,
Respondent singled out Announcer Cade, the union
steward, and former Chief Engineer Nixon for midnight
shift duties to replace the daytime schedules they had
before the commencement of the strike, and that
Respondent at the same time also deprived them of their
Saturday and Sunday off days, which they had had prior
to the strike. Another change shows that with the end of
the strike Respondent made the returning strikers take
their vacations at less desirable times than prior to the
strike and that Respondent favored its retained
replacement employees with more favorable times for
their vacations. Other changes are so petty in character as
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to carry the inference that they were put into effect by
President O'Hara out of sheer pique at the former
strikers. One example of this is the removal of the
venetian blinds from the transmitter building in order to
give the police better surveillance of the returning strikers
who worked the night shifts Another example is
Respondent's order requiring its employees to remove all
personal belongings from its facilities which the record
shows more adversely affected the returning strikers than
the retained replacement employees. Still another example
is Respondent's order to its engineers to refrain from
doing any maintenance work at the transmitter but to
refer such work to a replacement engineer, contrary to the
practice prior to the strike when each engineer was
required to do his own maintenance.
Moreover, the reasons given for these other changes are
specious or conflicting Thus the only reason given for the
order directing employees to remove their personal
belongings from the WMAN's two facilities is that "a
good number of years ago" there had been some loss of
Company tools The reason given by President O'Hara for
changing recalled Announcer Cade's former daytime
hours to the midnight shift after the strike was that he
believed that Cade was best qualified to handle the
midnight shift "without supervision" as it was not planned
to have any supervisors on the night shift. But in other
testimony, O'Hara testified that he ordered Cade's
midnight broadcast program taped for air checking
because he worked that shift without supervision The
findings above reveal similar unplausible or conflicting
reasons for virtually all of the changes in working
conditions put into force by Respondent after the strike
ended
These poststrike changes in working conditions are
compounded by the fact that some of them were made
applicable solely to former strikers and that others,
although ostensibly applicable to all employees, primarily
affected the recalled strikers.
In overall summary of the proof adduced under
paragraph 10 of the complaint in Case 8-CA-5006, I find
that General Counsel had substantially sustained his
burden of proof thereunder and accordingly finds that
Respondent has failed to properly reinstate former unfair
labor practice strikers Roger Marvin Cade, Lester W
Campbell, Clayton L Hallmark, Joseph R Nixon,
Martin J. Offmiss, and Eugene N. White to their former
or substantially equivalent positions of employment
pursuant to their unconditional offer to return to their
said former or substantially equivalent positions of
employment with Respondent.
I further find that Respondent failed to properly
reinstate the above-mentioned employees for the reasons,
as alleged in paragraph 11 of the complaint in Case
8-CA-5006, that said employees have participated in a
protected strike and concerted cessation of work which
commenced on October 6, 1967, and continued to March
15, 1968
Finally in conclusion, I find and conclude that
Respondent is in violation of Section 8(a)(1) and (3) of the
Act by failing to properly reinstate the aforementioned
unfair labor practice strikers in accordance with the Board
order in the above-mentioned Case 8-CA-4793, by
discriminatorily imposing on such employees upon their
return to Respondent's employment the new conditions of
employment found above to which they were not subject
prior to the strike
E Issue as to whether Respondent is in violation of
Section 8(a)(1) and (4) of the Act by imposing the
aforementioned new working conditions on the
former strikers upon their recall because they testified
against Respondent in the Board proceeding
The pleadings in the present Case 8-CA-5006 and the
record in the prior unfair labor practice case against
Respondent in Case 8-CA-4793 show that the
aforementioned six unfair labor practice strikers testified
in the said prior case against Respondent and otherwise
gave testimony under the Act
The complaint in Case 8-CA-5006 alleges' that
Respondent failed to properly reinstate these 6 former
strikers to their former or substantially equivalent
positions by changing their post-strike working conditions
for the further reason that they had testified at the hearing
in prior Case 8-CA-4793, and otherwise gave testimony
under the Act and thereby engaged in "unfair labor
practices affecting commerce within the meaning of
Sections 8(a)(l) and (4) and 2(6) and (7) of the Act."
Testimony in support of the abcve allegations is
reflected in the credited testimony of Engineer Hallmark,
one of the recalled strikers, as heretofore reported above
under III, C Hallmark's testimony establishes that
President O'Hara in a conversation with Hallmark on
April 7, 1968, accused the former strikers of having lied in
their testimony in the prior unfair labor practice case
against Respondent Hallmark's testimony further shows
that O'Hara on June 22, 1968, told him that the fact that
the former strikers had filed charges against him with the
Board was one of his reasons for "automating" the
transmitter station. More indirect evidence that
Respondent's poststrike changes in working conditions
were motivated by O'Hara's hostility against the former
strikers for giving testimony against him in the prior
proceeding is revealed in other incidents reported above
under part III C. There it is shown that O'Hara engaged
in personal vituperation against the strikers, stating that
he was not going to do the former strikers any favors.
There it is also shown, to repeat only one other incident,
that O'Hara told his old-time employee, Engineer
Campbell, that he was going to get tough in his treatment
of the ex-strikers as against his more lenient treatment of
them prior to the strike.
I find and conclude that the entire record amply
sustains the allegations of the complaint in Case
8-CA-5006 that Respondent failed to properly reinstate
the six former strikers here involved to their former or
substantially equivalent positions because they had
testified against Respondent in the prior Board
proceeding.
F Issue as to whether the Union waived the right to
bargain with Respondent with respect to the
installation of labor saving devices at its facilities
(Par 12 of complaint in Case 5072)
In the prior proceeding, the Board held that
Respondent was in violation of Section 8(a)(5) of the Act
by refusing to bargain in good faith with the Union
although there had been some 9 bargaining sessions before
the strike commenced on October 6, 1967, and 2 such
sessions during the course of the strike At the second of
these sessions held on'July 25, 1967, the Union presented
to the Company a proposed collective-bargaining
'Par 12 and related paragraphs of the complaint in Case 8-CA-5006
RICHLAND, INC.
agreement. One of its clauses, Item 36, prohibited layoffs
of employees "as the result of the introduction of new
equipment" without prior notice to and negotiations with
the Union with respect to such equipment changes and
proposed layoffs.'
At the ninth bargaining session held on October 4,
1967, the Union's representative, Ray Miller, withdrew
Item 36 from its collective bargaining agenda as a subject
for negotiations "in order to possibly get a first contract
settlement." The contract negotiations nevertheless fell
through and the involved employees, pursuant to a strike
vote taken the day before, commenced their
aforementioned strike on October 6, 1967, which did not
end until March 15, 1968. At the time of the trial herein
in late September 1968, the parties were as far away as
ever from the execution of a collective-bargaining
agreement.
The circumstances leading to the Union's withdrawal of
Item 36 are as follows. At the October 4 bargaining
session, Union Representative Miller went over the
Union's proposed collective-bargaining agreement item by
item with President O'Hara and when Miller reached
Item 36, O'Hara took the position that he would not
agree to that item. Miller testified that he inquired if the
Company planned to introduce automation equipment and
that he withdrew the proposal upon absolute assurances
from either O'Hara or his attorney that the Company had
no plans to automate its facilities "in the forseeable
future." O'Hara, on the other hand, testified that when he
was asked by Miller if the Company had any plans "to
automate right now," he told Miller that, "I don't know
whether it will be 10 weeks or 10 years from now but I
will not buy that clause." The Examiner credits Millers'
testimony that he received assurance at the conference
that the Company had no present plans to automate its
facilities which, aside from demeanor evidence, is borne
out by the fact that the Company did not decide to
automate until some 5 months later when the strike
ended. Moreover, as the right to install automation
without prior negotiations with the Union would give the
Company the power to decimate the bargaining unit here
involved, it is inconceivable that Miller, an experienced
union representative, would agree to withdraw Item 36
without the firm belief and conviction that Respondent
was not planning to automate. At the trial Miller testified,
"Had I any indication that the Company had some idea
in mind on a remote control nature I would have had to
hold onto this to the end as a burning issue. At this point
I had been assured that this was not going to happen."'
'The text of Item 36 reads as follows: "The Company will not layoff any
employees as the result of the introduction of new equipment or new
method of operation without first notifying and negotiating with the Union
the conditions pertinent to such changes and to the proposed layoff Any
lapse of time between the introduction of new equipment or new method of
operation and the proposed layoff resulting therefrom shall not be a bar to
negotiations . Neither a reduction in hours or operation nor change in
program content shall be deemed to be 'a new method of operation."'
'Although Mr. Miller 's answer to a question put to him by me may give
the impression , as argued in Respondent 's brief (page 17) "that the Union
was giving up the right to negotiate any change in new equipment or new
methods," it is clear from any review of Miller 's reiterated testimony (Tr
302-303, 318-321 ) that he was simply withdrawing Item 36 from the
collective bargaining negotiations then taking place because the subject
matter - automation - was merely academic as Respondent was not
contemplating any automation of its facilities
Discussion and Conclusions
101
Respondent contends that the Union "waived" its right
to notice and negotiate with Respondent with respect to
the Company's installation of any labor saving devices by
its withdrawal of Item 36 as a subject matter for
negotiation at the bargaining session held on October 4,
1967. The evidence as set forth in the findings above is to
the contrary. A waiver is quite a different matter than the
simple withdrawal of a proposal of a clause for
negotiation. The Union at no time stated it was waiving
its right to such a fundamental right as the right to
bargain about the introduction of devices which could
destroy the very employment of the members of the
bargaining unit. That right is so fundamental as to have
caused the Board to state that any change in an
Employer's operations which threatens "the elimination of
unit jobs, albeit for economic reasons, is a matter within
the statutory phrase `other terms and conditions of
employment' and is a mandatory subject of collective
bargaining within the meaning of Section 8(a)(5) of the
Act." (Emphasis supplied.) Town & Country
Manufacturing Co, 136 NLRB 1022.
In the present case there is not even a quid pro quo by
the Respondent for the claimed waiver by the Union as no
collective-bargaining agreement has ever been executed or
agreed upon between the Union and the Employer herein
from which it could be argued a waiver might be inferred.
The Employer is thus claiming a valuable right for which
it has not given any consideration. But even in cases
where the Employer and the Union have entered into a
contract, the cases uniformly hold that waivers such as
that claimed by Respondent here are not to be lightly
construed but on the contrary call for the most rigorous of
proof. Thus the Board in Cloverleaf Division of Adams
Dairy Co., 147 NLRB 1410, 1413, held: "The fact that
the Union attempted unsuccessfully to include in its
contracts a statement of its statutory right to bargain
about changes in working conditions, coupled with a
provision giving it a veto over the institution of any such
changes, is not evidence that the Union waived its
statutory right to advance notice and opportunity to
bargain about such changes." See also Perkins Machine
Company, 141 NLRB 98, at p. 102 and fn. 13, for
additional citations of cases in which no waiver was found.
Thus in summary the Examiner finds that there was no
waiver here by the Union of the right to bargain over the
introduction of labor saving equipment both as a matter
of simple fact and as a matter of law pertaining to the
quality of proof required for the proof of a waiver.
In connection with its "waiver" contention, Respondent
advances two collateral arguments on which brief
comment will be made. In its brief, the Company
contends that, "If the employer and the union reach an
impasse in negotiations, the employer may unilaterally
change the terms and conditions of employment as they
relate to the issue on which the impasse is reached," citing
in support of this proposition Dallas General Drivers, et
al. v. N.L.R.B., 355 F.2d 742 (1966). The difficulty with
this argument is that Respondent itself recognizes that no
impasse was ever reached on the subject of automation
between itself and the Union. This appears from the
concluding paragraph of Respondent's brief on the subject
under discussion wherein Respondent states, "It is thus
submitted that although an impassee did not exist on this
issue, one is not necessary when the union through the
process of bargaining cedes to management the
prerogative to determine the matter affecting the terms
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and conditions of employment of employees as heretofore
found the union represents ." (Emphasis supplied .) This is
circular reasoning as the record shows that the Union did
not in any sense waive or "cede to management" the
prerogative of unilateral decision on the matter of the
introduction of labor saving equipment.
The other argument advanced by Respondent is that
the conversion of Respondent ' s facilities to remote control
"was not one that may be considered a mandatory subject
of collective bargaining ." The quotation from the Board's
decision in Town & Country Manufacturing Co., supra,
as set forth above, shows however , contrary to this
contention , that any change in the operation of an
Employer ' s business which might produce the elimination
of unit jobs " is a mandatory subject of collective
bargaining within the meaning of Section 8(a)(5) of the
Act." Although Respondent recognizes this is the general
rule, as established by numerous cases, including the
Supreme Court ' s decision in Fibreboard Paper Products
Corporation v. N.L.R . B.. 379 U . S 213, affirming 138
NLRB 550 as enforced in 322 F . 2d 411, it seeks to find
shelter from the general rule under a decision rendered by
the U . S. Court of Appeals for the Eight Circuit in
N L.R.B v. Adams Dairy, Inc. 350 F . 2d 108, cert.
denied 382 U.S. 101 1.
There have been two decisions by the Court of Appeals
for the Eight Circuit in the Adams Dairy case. In its
original decision that Court in 322 F.2d 553 held that the
decision of the dairy company on economic grounds to
terminate distribution of its products through its
driver-salesmen and to distribute its products through
independent contractors was not a required subject of
collective bargaining under the National Labor Relations
Act. Following the decision of the Supreme Court in the
Fibreboard case , supra , the Court of Appeals upon
remand of its decision in the Adams Dairy case, in 350
F.2d 108 , reaffirmed its original determination in the case
on the ground that its prior decision was not in conflict
with the Supreme Court ' s holding in the Fibreboard case
but was distinguishable on its facts , a position which the
Supreme Court in effect agreed with when it denied a
petition for certiorari from the Court of Appeals ' second
decision in the Adams case . Inasmuch as the present
matter involves the substitution of labor saving
mechanical devices for personal services formerly
performed by employees in the unit , the instant case is
patently and fundamentally different on its facts from
those in the Adams Dairy case . In the Examiner's
opinion , the present case clearly falls within the general
rule of the Board as stated in Town & Country
Manufacturing Co., supra , which may again be noted
holds that any change in an Employer ' s operations which
threatens " the elimination of unit jobs, albeit for
economic reasons . . . is a mandatory subject for collective
bargaining . ." (Emphasis supplied ). That Board
decision is binding upon the Examiner , whatever remote
parallel there may be between the facts in the present
matter and the Adams Dairy case . Accordingly, the
Examiner finds that Respondent ' s contention that its
installation of labor replacement mechanical devices was
not a mandatory subject for negotiation is wholly without
merit under the facts of the instant proceeding in the light
of well established Board law as upheld by the Supreme
Court ' s decision in the Fibreboard case. On the contrary,
the Examiner finds and concludes that the substitution of
equipment devices for the personal services of employees
in the bargaining unit was and is a mandatory subject for
negotiations.
G. Issues as to whether Respondent 's admitted
unilateral installation of labor-saving equipment
without notice to the Union with resultant
termination of 3 employees and the shifting of their
former duties to other employees , is in violation of
Section 8(a)(l), (3), and (5), or was motivated by
economic necessity
The complaint in Case 8-CA-5072 alleges that
Respondent on or about June 21, 1968, installed certain
labor substitution mechanical devices, affecting the terms
and conditions of employment of the members of the
bargaining unit here involved, without notice to or
negotiations with the Union thereon . The principal
consequences of the installation was the termination of 3
of Respondent ' s engineers and the reassignment of some
of their former duties to the station ' s radio announcers
who are also members of the unit and of the remaining
duties to a supervisor.
Although the facts with respect to the installation and
the changes it brought about in the terms and conditions
of employment are not in dispute, the parties are in
disagreement as to Respondent's motivation in installing
the labor saving devices . General Counsel contends that
the devices were installed for the purpose of undermining
and destroying the authority of the Union as the exclusive
bargaining representative of the bargaining unit.
Respondent contends that installation was compelled by
business necessity . This defense is not pleaded in
Respondent ' s answer but was litigated by consent
The facts surrounding the installation of the
labor-saving devices are these . On March 15, 1968,
Respondent ' s striking engineers and radio announcers
through the Union made an unconditional offer to the
Company to return to their former or substantially
equivalent positions of employment with the Company.
On the same date the Respondent reached an agreement
for the purchase from Gates Radio Company of the
involved labor saving devices which is known as remote
control equipment but is sometimes loosely and
erroneously referred to as automation equipment. The
Company reinstated the striking employees on March 22,
1968. On April 15 Respondent ' s agreement to purchase
the remote control equipment was amended to include
audio equipment at an additonal cost of about $1,700. The
total cost for the remote control equipment , exclusive of
labor , was a net of $3,118 after deduction of $1,039 for
the trade - in value of old equipment. The new equipment
was chiefly installed by the aforementioned Jack Burling
who had been hired by Respondent to work at the
transmitter about a month before the strike commenced
and who was made Chief Engineer about April 15, 1968
shortly after he attained his required engineer 's licence for
the operation of a transmitter from the Federal
Communications Commission.
The new equipment was installed at both the
transmitter and at the broadcast studio. Prior to the
installation of the remote control system, the transmitter
required the around-the-clock services of licensed
engineers (1) to take and record various required meter
readings every half hour into an "Official Operating Log"
and (2 ) to make and record certain tests and inspections
of the transmitter into an "Official Maintenance Log" in
order that the transmitter may be properly maintained.
These meter readings and transmitter tests and inspection
are required under regulations of the Federal
Communications Commission.
RICHLAND, INC.
After the installation of the remote control equipment
and by reason thereof, the half-hour meter readings,
formerly available for reading only at the transmitter,
could be made from the broadcasting studio.
Simultaneously with the installation of the remote control
equipment , the duty of making such meter readings was
transferred from the engineers to the station ' s radio
announcers . These meter readings record such information
as the time the transmitter is turned on , the time the level
of the transmitter power is changed, power failures,
modulations , plate voltage , plate current , line current and
frequency deviations . Such readings and recordings must
be made around the clock when the station operates 24
hours a day as it has since the strike ended.
It had also been the function of the engineers to make
tape recordings of programs at the transmitter. After the
installation of the remote control equipment , this function
was also transferred to personnel at the studio station.
With the transfer of the meter readings to the studio,
the remaining maintenance duties having to do with the
testing and inspection of the transmitter and repairs
thereof were transferred from the Company's
non-supervisory engineers to its Chief Engineer Burling,
exclusively. The testing and inspection of the transmitter
is required only 5 out of 7 days and apparently no more
than once or twice a day. After the installation of the
remote control equipment , the transmitter station was
kept locked and Burling would enter it only as needed for
the required testings and inspections.
The Company admits that it installed the remote
control equipment without notice thereof to the Union and
without giving the Union the opportunity to negotiate with
the Company on the matter prior to the installation.
Although the Union had bargaining sessions with
Respondent on April 15 and 22, May 22, and June 14,
1968, the Company never mentioned or discussed with the
Union its plans to install remote control equipment and
the layoffs or terminations that would result therefrom.
Union Representative Miller got his first indication on
June 10 , 1968 that the Company was installing the
equipment by way of a note from Announcer White who
upon his return from his vacation had noticed for the first
time evidence of the installation of the equipment.
Before Miller could arrange another meeting with the
Company to discuss with it the equipment being installed,
the Company on June 21, 1968, posted a notice to all of
its engineers , announcing the layoffs of 5 engineers as of
June 29, 1968. The Company gave as its reason for the
layoffs the closing of the transmitter due to "going remote
control and automation ." Those named in the notice for
layoff were the three alleged discriminatees here involved,
Clayton Hallmark, Joe Nixon and Lester W. Campbell,
and two retained replacement engineers who had been
hired during the strike , Ron Gorka and Mrs . R. Burling,
the wife of Jack Burling , the Chief Engineer , the latter
being the only engineer retained by Respondent after the
remote control equipment went into operation.
The Union protested the remote control installation at
a meeting held with the Respondent on July 2 , 1968, but
the Company through its attorney took the firm position
that the work formerly done by the engineers had been
eliminated by "semi-automation" notwithstanding
arguments by the Union that the remote control
equipment was not genuine automation but were merely
devices for transferring work from the Company's
engineers to non-engineer personnel at the studio and the
remaining maintenance work to a supervisor.
103
General Counsel contends that Respondent's poststrike
conduct establishes that the Company's motive in
installing remote control and audio equipment was to
undermine and destroy the Union by dissipating the
bargaining unit through a wholesale termination of its
engineering segment.
Respondent, on the other hand, contends that it was
forced into the installation of the remote control devices
by economic necessity and that by making such
installations it was following a trend in the industry. The
record shows through the testimony of Union
Representative Miller that there has been a trend towards
the installation of remote control devices in the industry in
situations like that here involved where the transmitter is
a separate facility from the broadcasting facility. The
chief advantage of a remote control system is that it
results in cost savings on engineering personnel that would
otherwise be required to operate a transmitter.
Respondent effected a cost saving of approximately
$28,000 per year in wages by the termination of its 5
nonsupervisory engineers after the installation of the
remote control system as against the $3,118 cost of the
remote control and audio equipment plus an estimated
sum of about $4,800 paid in wages by Respondent to its
Chief Engineer Burling and assisting replacement Engineer
Gorka for the time devoted from their regular work in
installing the equipment over a period of about 3 months.
There are two chief disadvantages which face a radio
station when it substitutes a remote control system for
engineers in the operation of a transmitter . One is that if
anything goes wrong with the remote control lines between
the station and the transmitter site, the station under the
requirements of the Federal Communication Commission
must shut down until the repairs are made or an operator
is put at the transmitter site. The other disadvantage is
that a transmitter which has been wired for remote
control is generally completely unmanned for most of the
operating day and thus there is a strong likelihood that
there will be no one at the transmitter when a breakdown
of its apparatus occurs which requires immediate repair by
a licensed engineer.
Respondent contends that its principal reason for the
installation of the remote control devices was the decline
of net profits the Company had in 1967 as compared with
its net profits for 1966. In 1966, the station had a net
profit of $138,348; in 1967 its net profits dropped to
$101,187, which is a decline of about $37,000. A
comparison of the Company's profit and loss statements
for the two years shows that the decline in net profits for
1967 was due primarily to a drop of revenue from spot
announcements . In 1966, the gross income from spot
announcements was $280 ,090 whereas the gross revenue
from that source in 1967 was $241,065.
This reduction in revenue from spot announcements of
about $39,000 in 1967 as against 1966 just about matches
the reduction in Respondent's net income for 1967 as
against 1966. In the absence of any other valid or credible
reason of record for the decline of net income for 1967 as
compared to 1966, I infer and find that the strike which
started at Respondent's facilities on October 6, 1967, and
continued throughout the balance of 1967 caused the
decline of about $39,000 from spot announcements in
1967 and that this in turn caused the matching decline of
about the same amount in net income for 1967, but still
gave the Company a net income of $101,187 for 1967
which is a remarkable net income for a gross income of
only $401,252 for that year.
to
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Company contends that the second reason for the
installation of the remote control and audio equipment is
the growing competition it is receiving from 3 of its
competitors which operate with fewer personnel and
cheaper advertising rates and combine, unlike Respondent,
their transmitter and studio in one building There is no
showing of record, however, that the competition
Respondent was receiving in the two years in which the
strike took place (the strike having occurred in the latter
part of 1967 and first 3 months of 1968) was any keener
than it had been in prior years The record, on the
contrary, shows that once the strike was over the
Company began to spring back to its prestrike level of
gross income At the time of the trial herein in September
of 1968, Respondent's profit and loss statements were
available only for the first 8 months of 1968. The gross
income for those 8 months was $272,927, this figure if
extended over the remaining 4 months of 1968 at the same
average monthly gross income would give Respondent a
gross income of $409,387 for 1968, without taking into
consideration the probability of increased volume of
monthly sales the station might receive during the fall and
Christmas season. While this figure is some $24,000 short
of Respondent's gross income in 1966, it is better than its
1967 gross income but still reflects the adverse impact of
the strike as the strike did not end until the latter part of
March 1968
Respondent in about the year 1956 had given
consideration to the installation of remote control
equipment when it found it necessary to relocate its
transmitter site and again in 1960 when the station was
granted the right to increase its operation power from 250
to 1000 watts, but decided against conversion to remote
control on those two occasions This appears from the
testimony of Respondent's former Chief Engineer William
Morrison, but no testimony was offered by Respondent as
to why it had decided against conversion to remote
control in 1956 and again in 1960
Discussion and Conclusions
The record as a whole compels the conclusion that
Respondent installed its new labor-saving remote control
and audio system for the principal purpose of furnishing it
with a pretext for firing its entire staff of prestrike
licensed engineers10 consisting of Campbell, Nixon, and
Hallmark because of their Union sympathies and 5 month
strike against the Company, in order to dissipate and
undermine the authority of the Union, as alleged in
paragraph 14 of the complaint in Case 8-CA-5072 and
related paragraphs
The record is replete with evidence of Respondent's
hostility to the Union and efforts to eradicate the
organization of its employees by the Union The
Company's union animus was initially documented in the
decision of Trial Examiner Reel in the prior unfair labor
practice case against the Respondent in Case 8-CA-4793
That decision became final upon Respondent's failure to
file exceptions to my findings therein of numerous
violations of the Act, including the finding that the strike
by Respondent's employees which began on October 6,
1967, was an unfair labor practice strike
The record in the present proceeding of Respondent's
subsequent conduct shows that Respondent's union animus
"Although Burling was hired as an engineer about a month prior to the
starting of the strike and worked throughout the strike he did not obtain
his engineer or operator 's license until after the strike ended
has not abated but has rather increased in tempo and
seriousness It is shown above (section 11I,C) that after
the end of the strike and upon the return of the striking
employees to Respondent's employment that the Company
through its President O'Hara engaged in numerous
violations of Section 8(a)(I) of the Act by threatening the
returning employees with economic reprisals, including
discharge, layoff, or termination of employment because
of their union activities.
It is also shown above (section III,D) that Respondent
engaged in violations of Section 8(a)(1) and (3) by failing
to properly reinstate the returning strikers to their former
or equivalent positions by imposing upon them such
serious changes in working conditions as requiring them to
take night shifts in place of the day shifts they had before
the strike and by assigning to them week-days as their
days off instead of the week-ends they had enjoyed prior
to the strike Other changes in working conditions
imposed upon the returning strikers were less serious in
nature but reveal elements of reprisal and harassment
Including among these petty changes in working
conditions was the new rule that no longer permitted the
employees to keep personal belongings at the premises of
the station as they had done for years prior to the strike
and the new practice of depriving employees of keys to the
facilities which now makes it necessary for them when
reporting to work to wait outside until they are admitted
to the premises from the inside
It is also further shown above (section 111,E) that
Respondent engaged in conduct in violation of Section
8(a)(1) and (4) by imposing the heretofore described new
working conditions on the returning strikers as reprisals
for having testified against Respondent in the Board's
prior unfair labor practice case against the Company.
Thus the record compels the conclusion that
Respondent is intent on ridding itself of the Union by all
possible means and that it hit upon the idea of installing
remote control as a way of eliminating half of the jobs in
the bargaining unit and thereby destroying the Union or
leaving it largely impotent
The unsubstantial nature of Respondent's economic
justification for its decision to install remote control lends
further support to the conclusion that Respondent's real
motive for the installation was to undermine the authority
of the Union Respondent contends that the force of new
competition caused a slump in its net profit in 1967 as
compared with 1966 and that it installed the labor-saving
devices of remote control in an attempt to recoup its
former profit level While it is true that Respondent's net
profit in 1967 was $101,187 as compared with $138,348 in
1966, the record compels the conclusion that this was due
entirely to the temporary effect of the strike on gross
revenue rather than to a permanent loss of advertising
revenue to competitiors, as there is no credible showing"
that Respondent's competitors increased in numbers or
vigor of competition during the 5-month period in which
Respondent's announcers and engineers were on strike
That it was the temporary effect of the strike on sales
rather than increasing competition that caused the decline
in Respondent's net profits for 1967 is borne out by the
fact that Respondent's gross income for the first 8 months
"1 give little weight to the testimony offered by Respondent in this
connection as the sole testimony relating thereto came from Burling,
Respondent's chief engineer who was not shown to have any competence
on the subject, and not from Respondent's advertising and sales managers
(Resp Exh 3 shows such categories of managers) who would have been
competent to testify on the matter
RICHLAND, INC. 105
of 1968, reflecting in large part post-strike revenue, shows
a strong upswing notwithstanding that the latter reflects
the drag of the strike on Respondent's business for the
first 2 1/2 months of 1968 when the strike was still in full
progress. It should be noted that although Respondent
suffered a decline in profit for 1967, it nevertheless
enjoyed a net profit of $101,000 in that year on gross sales
of slightly over $400,000 which in itself is an exceptional
good record and one that did not call for drastic reduction
in expenditures.
The best economic justification offered by Respondent
for the installation of remote control is that it gives the
Company a labor-saving of about $28,000 per year as
against a long time capital expenditure of only about
$8,000 for the installation of the new equipment. 1,
however, do not credit this labor- saving as the primary
motivation for the installation of the labor-saving devices
inasmuch as Respondent in prior years after careful
consideration of the pros and cons of remote control
decided it was not in its best interest to install such
equipment notwithstanding the labor savings it would
bring. I infer and conclude that Respondent rejected
remote control in 1956 or 1957 and again in 1960 because
there are inherent advantages in a labor manned
transmitter over remote control that outweigh the $28,000
in labor costs a remote control system would save. In my
opinion, Respondent's decision in 1968 to install remote
control was made not for the resulting savings in labor
costs but for the purpose of undermining the authority of
the Union by substantially reducing the number of
employees in the bargaining unit through discharge.
It is significant that Respondent placed its order for the
remote control equipment virtually simultaneously with
the end of the 5 month unfair labor practice strike when
the striking employees made an unconditional offer to
return to their former positions and the Company thereby
became obligated under well established law to reinstate
the strikers or accept financial consequences for failure to
do so. It is also significant that the decision to install
remote control, made in secret, was contrary to the
assurances given the Union by the Company 5 months
prior thereto in a bargaining session that it had no plans
to go remote contol in the foreseeable future.
I find that Respondent is in violation of Section 8(a)(I)
and (5) of the Act by its refusal to bargain with the Union
with respect to its unilateral installation of new equipment
affecting the terms and conditions of employment of the
employees in the bargaining unit which had the effect of
eliminating bargaining unit work, transferring work
previously performed by Respondent' s engineer-employees
to its announcer-employees, terminating the employment
of all of its engineer-employees, other than its supervisor,
Jack Burling, and transferring all engineering,
maintenance and repair duties to Supervisor Jack Burling.
I further find and conclude that Respondent installed
the new equipment here involved for the purpose of
furnishing it with a pretext for the termination of
engineers Lester W. Campbell, Joseph Nixon, and
Clayton L. Hallmark because of their participation in the
5 month strike against the Company and that Respondent
by reason of the discriminatory layoffs, discharge, or
otherwise termination of the said employees is in violation
of Section 8(a)(1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent, set forth in section
III, above, occurring in connection with the operation of
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent engaged in
certain unfair labor practices in violation of Section
8(a)(1), (3), (4), and (5) of the Act, it will be
recommended that Respondent cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
It having been found that Respondent has refused to
bargain collectively in good faith with the Union as the
exclusive representative of the employees in the
appropriate unit described herein, it will be recommended
that Respondent, upon request, bargain collectively with
the Union as the exclusive representative of the employees
in the appropriate on all matters pertaining to rates of
pay, wages, hours of employment, or other conditions of
employment, including the retroactive affects of
Respondent's installation of the new remote control and
audio equipment at its facilities on its employees, and, if
an understanding is reached, embody such understanding
in a signed agreement, but this recommended order is not
intended to make the reinstatement of three
engineer-employees terminated by Respondent a matter
for bargaining as their reinstatement will be expressly
ordered below.
It having been found that Respondent discriminately
discharged Lester W. Campbell, Joseph R. Nixon, and
Clayton L. Hallmark in violation of Section 8(a)(1) and
(3) of the Act, it will be recommended that Respondent
offer to all of said discriminatees immediate and full
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges and to make whole all of said
discriminatees for any loss of earnings they may have
suffered by reason of the discrimination against them, by
payment to each of a sum of money equal to the amount
each would have earned from the date of the
discrimination against him until such discrimination has
been fully eradicated, less the net earnings of each during
the discriminatory period. Backpay with interest at the
rate of 6 percent per annum, shall be computed in the
manner set forth in F W Woolworth Company, 90
NLRB 289, 291-294, and Isis Plumbing & Heating Co.,
138 NLRB 176.
Although the order requiring Respondent to reinstate
the three above-named employees may compel the
Respondent to restore its transmitter to manned operation
and thereby deprive the Company of the labor cost
savings of remote control, this is a consequence
Respondent brought on itself by unilaterally installing
remote control for the purpose of giving the Company a
pretext for the discharge of the three employees because
of their Union interests and activities as reflected in their
engagement in the 5 month old strike. But in reality the
order will not seriously affect Respondent as it does not
require the reinstatement of the entire complement of the
five engineers who were layed off or discharged, but only
the three employees named in the complaint as
discriminatees. One of these three employees, Lest W.
Campbell, has attained or will shortly attain the normal
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
retirement age of 65. While the order under discussion will
require Respondent to reinstate Campbell and make him
whole for any loss of earnings, his retirement after
reinstatement could be made a legitimate matter for
negotiations at the next bargaining session held by the
Union and the Company Furthermore the reinstatement
of the three indicated employees, including Campbell,
would not necessarily require Respondent to shut down its
cost saving remote control and audio system altogether as
the transmitter could be operated partially under remote
control and partially under a manned operation As the
record shows that a manned operation of the transmitter
has greater protection against breakdowns than remote
control, Respondent may choose to operate the
transmitter with manned personnel during the day time
when revenue from advertisements should be maximum
and to go on remote control for the midnight shift. In any
event the long-term capital investment of approximately
$3,100 for the remote control and audio equipment and
the somewhat larger amount for the labor costs in the
installation represent a rather small investment for
Respondent in view of the fact that it normally has an
annual net income of approximately $140,000.
As it has been found that Respondent did not properly
reinstate former striker-announcers Roger Marvin Cade,
Martin J. Offmiss and Eugene N White and
aforementioned former striker-engineers Campbell, Nixon,
and Hallmark upon their reinstatement on March 22,
1968 in that Respondent changed their working conditions
from what they had been before the strike, it will be
ordered that Respondent properly reinstate Cade, Offmiss
and White to the same terms and conditions of
employment they enjoyed prior to the commencement of
the strike on October 6, 1968 before the strike and it will
be further ordered that upon the reinstatement of
Campbell, Nixon and Hallmark from their discriminatory
layoffs or discharge of June 29, 1968, that Respondent
reinstate them to same terms and conditions of
employment they had prior to the commencement of the
said strike, subject however, to any changes in terms and
conditions of working conditions as may be worked out in
joint bargaining sessions between the Union and the
Company.
Because of the character and scope of the unfair labor
practices herein found, it will be recommended that, in
order to effectuate the policies of the Act, Respondent
cease and desist from in any other manner interfering
with, restraining , and coercing employees in the exercise
of their rights guaranteed by Section 7 of the Act
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, the undersigned makes
the following
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the
Union is a labor organization , all within the meaning of
the Act.
2 The Union has been at all times herein material,
beginning on the date of its certification on May 12, 1967,
the exclusive collective bargaining representative of the
following employees of Respondent in the following
appropriate unit.
All announcers and engineers, excluding office clerical
employees, guards and supervisors as defined in the Act
and all other employees.
3. By interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Respondent has engaged, and is
engaging, in unfair labor practices within the meaning of
Section 8(a)(1) of the Act
4 After rehiring the unfair labor practice strikers
named in paragraph 7 of the complaint in Case
8-CA-5006 pursuant to the order of the Board in a prior
proceeding, the Respondent by refusing to properly
reinstate the said former strikers to their former or
substantially equivalent positions of employment, has
discriminated in regard to their hire and tenure of
employment, thereby discouraging membership in the
aforesaid labor organization , and has engaged in, and is
engaging in, unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the Act.
5. Similarly after rehiring the above-mentioned unfair
labor practice strikers pursuant to the order of the Board
in the prior proceeding, the Respondent by refusing to
properly reinstate the said former strikers to their former
or substantially equivalent positions of employ because
they had testified against Respondent in the prior
proceeding, has discriminated in regard to their hire and
tenure of employment, thereby discouraging membership
in the aforesaid labor organization, and has engaged in,
and is engaging in, unfair labor practices within the
meaning of Section 8(a)(1) and (4) of the Act
6. By discriminatorily laying off or discharging
employees Lester W. Campbell, Joseph R Nixon, and
Clayton L. Hallmark, thereby discouraging membership in
the Union , Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1), (3) and (4) of the Act
7. By failing and refusing to bargain in good faith with
the Union as the exclusive bargaining representative of the
employees in the above-described appropriate unit, and by
the acts described in the complaint in Case 8-CA-5072
under Paragraphs 11, 12, and 13, and various
sub-paragraphs thereof, for the reasons set forth in
paragraph 14 thereof, and by each of said acts, the
Respondent has engaged , in and is engaging , in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
8. Respondent is in violation of the Act by reason of
the conduct alleged in all other paragraphs and
subparagraphs of the complaint in Cases 8-CA-5006 and
8-CA-5072, as more specifically set forth in the findings of
fact above.
9 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
[Recommended Order omitted from publication.]